Award of the arbitrator in the matter of the claims of John D. Metzger & Co. against the Republic of Haiti.

In pursuance of a protocol signed at Washington October 18, 1899, and a supplemental protocol signed June 30, 1900, between the Hon. John Hay, Secretary of State of the United States, and the Hon. J. N. Léger, envoy extraordinary and minister plenipotentiary of the Republic of Haiti, representing their respective Governments, for submission to arbitration of the questions of the liability and amount of damages, if any, to be awarded in favor of John D. Metzger & Co. against the Republic of Haiti, I have investigated the claims of said John D. Metzger & Co. upon the correspondence and testimony submitted in pursuance of said protocols and do now submit the following findings and award:

John D. Metzger & Co., through the State Department at Washington, presented against the Republic of Haiti three separate claims which are the subject-matter of the arbitration, claiming indemnity on account of the alleged liability of the Republic of Haiti for a quantity of lumber alleged to have been sold by them to the relief committee on the occasion of the devastation by fire of the city of Jacmel; also on account of the alleged failure to furnish them an adequate, supply of water for the operation of their mill at Port au Prince; also on account of the seizure and sale of their goods at Port au Prince for nonpayment of license taxes. I shall now proceed to consider these cases in the order named.

lumber claim.

This claim arises from an undertaking on the part of the firm of John D. Metzger & Co. to furnish lumber for the inhabitants of the city of Jacmel. This city was devastated by fire in the fall of 1896, a large part thereof being destroyed. A relief committee was assembled on the 20th day of November, 1896, to consider methods of relief, in view of the fact that the Government of Haiti had indicated its purpose to allow the sum of $20,000 for the relief of the people. Prior to the assembling of this relief committee the firm of Metzger & Co. had proposed to furnish lumber to be distributed among the needy [Page 265]people of Jacmel to the amount of the proposed appropriation. The relief committee, composed of eight citizens, took action upon this proposal, as is evidenced in the following minute or memorandum:

To-day, Monday, November 23, 1896, the ninety-third year of independence, have been assembled, upon convocation of the Government’s delegate of the arrondissements of Saltron and Jacmel under date of the 20th of this month, at the hotel of the delegation the citizens, first, D. Bellande, mayor; second, P. Nicholas, deputy; third, St. Paul, deputy; fourth, S. Berrouet, deputy; fifth, I. C. Giordany, military commander; sixth, E. Bellande, dean civil court; seventh, A. Charmant, former deputy; eighth, D. Hilaire, attorney at law, all members of the relief committee formed in this city for the purpose of affording aid to the victims of the fires of September 19 and October 3 last, for the purpose of taking cognizance of a letter addressed to said committee by Mr. Bernard Craft, procurator of the firm of John D. Metzger & Co., established in this city, who offers his services to the population, in case the committee should wish to invest the $20,000 (gourdes) appropriated (“votées”) by the Government in favor of the homeless (“sinistres”) of Jacmel, in building material.

Upon lecture of said letter the members of the relief committee have spoken, one after the other, of the importance and the advisability of the proposition of Mr. Craft, and have finally adopted the offer made to them to import from the United States building material for him to hold at the disposition of the relief committee at the rate of 35 gourdes per thousand and to the extent of $20,000, which the Government has allowed (“accordés”) the population to their relief, and which building materials must be held in yard (“depot”) to the disposal of said committee.

By virtue of all that precedes, this decision shall be submitted to the sanction of the Government, praying the same to give its sanction thereto, and to arrange with the house of John D. Metzger & Co., for the mode of payment.

Done in Jacmel the day, month, and year above written, and have signed.

(Signed)

Charmant.

I. C. Giordany.

E. Bellande.

M. P. Nicholas.

Merisier Jeannis.

St. Paul.

D. Bellande.

N. Hilaire, jeune.

Berrouet.

It thus appears that the relief committee provisionally accepted the offer of Metzger & Co. to furnish material to be held at the disposition of the relief committee, to be furnished at the rate of 35 gourdes per thousand to the amount of $20,000. This arrangement was not entered into, however, for the purpose of binding the committee either personally or as a committee. It was to be the basis of a contract with the Government, to which the minute recites the “decision” shall be submitted for its sanction and to arrange with the house of Metzger & Co. for the mode of payment. Metzger & Co., recognizing this purpose in the action of the committee, on the 7th of December, 1896, submitted to the secretary of state of the department of the interior of Haiti a copy of the foregoing minute soliciting the Government’s sanction of the transaction and an understanding about the mode of payment. This communication is as follows:

Port au Prince, December 7, 1896.

To General Buteau fils,
Secretary of State of the Department of the Interior, Port au Prince.

Mr. Secretary of State: We have the honor to inform you that we have concluded an agreement with the relief committee of the city of Jacmel to furnish them for $20,000 (gourdes) building material at 35 gourdes per thousand feet.

According to the “procès verbal,” copy of which is herewith annexed, we are to obtain the Government’s sanction of this transaction and have an understanding about the mode of payment.

We are ready to commence our delivery immediately and to finish them within fifteen days from the day of the first delivery.

In soliciting an early reply as to your decision, especially so on account of a disturbance that again seizes upon exchange,

We remain, Mr. Secretary of State, your most obedient servants,

(Signed)

John D. Metzger & Co.

[Page 266]

It will be observed that in this communication the secretary is advised that Metzger & Co. are ready to commence deliveries immediately and to finish them in fifteen days from the first delivery. No written answer to this communication is in evidence in the case. On the 4th of January, 1897, Metzger & Co. addressed the following communication to the President of the Republic and the council of secretaries of state:

Port au Prince, January 4, 1897.

To the President of the Republic of Haiti in Council of the Secretaries of State.

President, Messieurs les Secrétaires d’Etat: We have concluded with the relief committee of Jacmel a bargain to deliver them for $20,000 (gourdes) building material, which sum the council of ministers had appropriated to the victims of the fires of that city.

The council having sanctioned the transaction above referred to, the material has been ordered, and has arrived. We wish to make delivery without delay, that we may be reimbursed for our heavy outlays and escape the perils to which these goods are exposed, they being subject to destruction by fire and exposed in every respect.

We therefore have the honor to pray you that you will please put the money in question at our disposal, so we may commence our deliveries.

Accept, President, Messieurs les Secrétaires d’Etat, our most respectful salutations.

(Signed)

John D. Metzger.

The council, it is recited in this communication, have sanctioned the transaction with the relief committee. The material has been ordered and has arrived. Metzger & Co. express their desire to make delivery without delay and ask that the money, $20,000, be placed at their disposal so that deliveries might begin. To this letter an answer was returned by the secretary of state of finance and commerce of date January 13, 1897, as follows:

Department of State of Finance and Commerce,
Port au Prince, January 13, 1897.

My Dear Mr. Metzger: I have received your letter, to which I have hardly time to answer, leaving as I do for Cape Haitien by the French boat, to return in about eight days.

As I already told you, the council of ministers has authorized me to try and see whether I could find $5,000 for you. It would be impossible for me to pay you $10,000, as I do not even see my way clear to pay half that amount.

I regret, believe me, that your embarrassments coincide with those of the State; so much so that with my best will I can not be agreeable to you.

Please be assured of my personal best sentiments toward you.

Your devoted,

(Signed)

A. Firmin.

In this letter it will be observed there is no denial of Metzger & Co.’s statement that the council of ministers had sanctioned the arrangement with the Jacmel relief committee; but the secretary suggests his inability to raise more than $5,000 for Metzger & Co. This letter may be taken fairly as an admission that the council of ministers had approved of the arrangement made by the relief committee, which was only to be binding on the Government when thus authenticated by it.

In the affidavit of John D. Metzger, filed with the claim in the State Department, it is said “that the Government of Haiti has become a guarantor and principal in the transaction related in the ‘process verbal’ of the Jacmel relief committee, dated November 23, 1896, by indorsing and accepting the same purely and simply, and that the minister of the interior then in office had given the deponent verbal notice of such acceptance or indorsement, and that the notice was corroborated by the then minister of finance, Mr. C. Fouchard, to the [Page 267]deponent. What then was the arrangement thus adopted by the council? It was that $20,000 worth of lumber at a fixed price should be delivered for the relief of the inhabitants of Jacmel.

It does not appear that the part of the “process verbal” which required the mode of payment for lumber furnished to be determined between Metzger & Co. and the Government had been the subject of negotiation and settlement. It was not stated in the preliminary arrangement that the material was to be paid for in cash upon delivery. The provision that the mode of payment should be determined between the Government and Metzger & Co. is strongly indicative of the intention to obtain terms of payment of a different character. In any event and for whatever reason the “process verbal” reserved to the Government the right to negotiate with Metzger & Co. terms of payment which should be mutually satisfactory. There is nothing in the testimony or correspondence to indicate that this important element of the proposed contract had been the subject of negotiation and settlement between the parties. When the matter was taken up an arrangement was effected by which $5,000 worth of building material was to be delivered to the relief committee upon the payment of $5,000. The committee, however, declined to receive the building material unless officially advised so to do by the Government, as appears in its note of February 6, 1897, to Metzger & Co. This instruction seems to have been refused by the department of the interior, and on the 10th day of February, 1897, Metzger & Co. addressed the following communication to the secretary of state of finance and commerce:

Port au Prince, February 10, 1897.

To the Secretary of State of Finance and Commerce, Port au Prince.

Mr. Secretary of State: We announce to you with regret that our efforts (demarches) near your colleague of the department of the interior have remained fruitless, he refusing to give us the letter demanded by the relief committee of Jacmel under the plea that there is an understanding between you and ourselves that we should deliver for $20,000 of material before we could collect $5,000.

As you well know, this is a profound mistake, no affair of credit having been agreed upon between us. Our agreement was that we should deliver for $5,000 lumber against $5,000 cash down and that we were to enter upon arrangements for the balance.

Requesting you kindly to enter into communication with your colleague of the interior, and regulate the conditions taken, we are, Mr. Secretary of State,

Yours, etc.,

John D. Metzger.

In this letter we find the first evidence that the matter of the mode of payment had been the subject of consideration and determination between the Government and Metzger & Co. In this letter Metzer & Co. say: “Our agreement was that we should deliver $5,000 worth of lumber against $5,000 cash down and we were to enter into agreement for the balance.” To this letter no reply appears to have been made and it may fairly be taken as stating the arrangement so far as definitely concluded. There is the distinct admission on the part of Metzger & Co. that arrangements are still to be made as to the mode of payment for the balance of the lumber. As we have seen, Metzger & Co. have advised the Jacmel relief committee of their willingness to furnish $5,000 worth of lumber for $5,000 in cash, which proposition the relief committee declined to accept without the sanction of the Government. It is apparent from the testimony and documents in evidence that the difference which arose between Metzger & Co. and the Government as to the terms and mode of payment was never reconciled [Page 268]and no further definite agreement was concluded between the parties interested. It is to be gathered from the documents and correspondence that Metzger & Co., owing to their distrust arising from the unsettled condition of affairs in Haiti, deemed it imprudent to furnish the lumber except for cash, and the Government’s declination to receive the same except upon credit led to an irreconcilable difference upon this branch of the proposed contract, upon which the minds of the parties never met on a common basis.

In reaching this conclusion I have not overlooked the fact that when demand for payment from the officials of the Government of Haiti was made, the answer of the Government based the denial of liability upon other grounds than lack of agreement with Metzger & Co. as to the mode of payment. Upon October 6, 1897, Metzger & Co. wrote to the Government officials asking payment for the amount of lumber tendered the Jacmel relief committee. It was answered November 13, 1897, by the secretary of state of the department of the interior, calling for documentary proof showing that the lumber had been placed to the account of the Government. A letter is in evidence, dated June 30, 1898, from Hon. T. August, then secretary of state of the interior, in which the receipt of the letter of Metzger & Co. of the 6th instant, inclosing copy of the minute of the relief committee, and from the minister of the interior, above referred to, is acknowledged. In this letter Mr. August states that the council decided that the claim can not be considered, nothing having been furnished to the population of Jacmel. It must be borne in mind, as shown in the statement of Metger & Co., filed in the State Department, that four changes of ministers intervened during the time which Metzger & Co. were pressing their claim for settlement. These denials of liability, under the circumstances, I deem consistent with the other proof, which shows that the council of ministers had approved of the arrangement with the relief committee, which left open the manner in which the $20,000 was to be paid. But no agreement was reached further than herein indicated upon this subject. Upon consideration of all of the documents in evidence submitted I have reached the conclusion that the Government did definitely agree and bind itself through its proper officers to take $5,000 worth of lumber; that Metzger & Co. tendered delivery of this material; that the Government refused to pay said sum, and that the relief committee declined to receive the same without instructions and sanction of the Government. Therefore there was a breach of contract entitling Metzger & Co. to $5,000 in consideration of that much worth of lumber. As the result of this default Metzger & Co. were compelled to dispose of said lumber at a great sacrifice. Owing to the conditions of affairs in Jacmel it was almost impossible to sell the lumber there. I find the loss of Metzger & Co. because of this contract to be the difference between the price agreed upon and the price obtainable in the market at the time and place of delivery, namely, $3,000, which sum, in my opinion, is justly due from the Republic of Haiti to Metzger & Co.

As to the objection interposed by complainant to certain testimony offered by the government of Haiti, to wit, pieces numbered 14 to 27, inclusive, which bear date as of October, 1898, I have concluded to consider said testimony for whatever weight I consider it justly entitled. In my opinion it is not decisive of the real issues in the case, as it tends to show that the relief committee did not make any contract binding [Page 269]upon the committee. The real question to be determined is, How far did the government of Haiti make itself liable under the circumstances shown? I have, therefore, given this testimony due consideration and declined to exclude it as requested by counsel for the claimant.

water claim.

Metzger & Co., having established a business as dealers in lumber and erected a planing mill in connection therewith, in the fall of 1897, discovered that the supply of water furnished by the hydraulic service at Port au Prince was inadequate, and they were not able to obtain water enough for their mill. The mill had theretofore been supplied with a three-quarter inch pipe. Metzger & Co. made application for a 1-inch pipe. This application was entertained by the local authorities, and an agreement was reached with Metzger & Co. by which their firm was to pay for obtaining the pipe and the cost of laying same. The work was estimated to cost $81.75. This estimate was accepted by Mr. Metzger and indorsed “Approved. Good for $81.75.” It is claimed that Metzger & Co. refused to pay this sum. I find, however, from the testimony submitted, that the mayor of the commune in a report to the minister of foreign affairs of Haiti, stated that he had agreed to make compensation for the $81.75 on a sum of $218 on a debt due Metzger & Co. from the commune, which the mayor alleges Metzger & Co. refused to do. This claim, however, is inconsistent with the acceptance of the bill indorsed by Metzger & Co., with approval as above quoted, and with the fact that the commune was embarrassed in the payment of its debts, and Metzger & Co. are likely to have been entirely willing to obtain part of their claim from the commune in this way. The testimony is clear that Metzger & Co. badly needed the water, without which they could not run their mill, the lack of it greatly interfering with their business and practically bringing it to a standstill. It is inconceivable that they would not permit a credit of such a small sum upon their claim to enable them to obtain the much-needed water supply. I am of opinion that this arrangement for the furnishing of water was entered into between Metzger & Co. and the local authorities and should have been carried out in good faith. It appears that this work was begun but was stopped by the communal magistrate, who informed Metzger & Co. that unless they paid certain license taxes a 1-inch pipe could not be laid, but a one-half inch pipe, which had already proved inadequate, would be supplied. Metzger & Co. claimed that the license taxes could not be paid by reason of certain orders of the local courts undertaking to subject the same to payment of creditors of the commune. I do not deem it important in this connection to enter upon the merits of that controversy. I am satisfied that the payment of license taxes had nothing to do with the furnishing of a water supply to Metzger & Co. This demand was probably an afterthought, improperly introduced into the affair, and could have no effect in releasing the authorities from their contract. It also appears that it was claimed that Metzger & Co. were in arrears for water rent. This is contradicted by receipts in evidence in the case. No such claim was made when the contract was entered into with Metzger & Co. for a 1–inch pipe. If such a claim could have been made, it should have been insisted upon at the time. As to the alleged offers to carry out the agreement, it does not [Page 270]appear that upon the occasion of Mr. Metheun’s visit to Metzger & Co.’s works in 1898 he offered to carry out the agreement, which had in fact been made, but only to repair the insufficient service, already in at Metzger & Co.’s expense. Reference is made in the brief fried in behalf of the Republic of Haiti to a private letter of one Hilaire, an attorney, to the mayor of the commune. Hilaire is said to have been the attorney of Metzger & Co. It is of date of June 17, and he says “they (Metzger & Co.) refused to accept the mode of payment proposed by you (Mathon) based as you say on the compensation.” No doubt this referred to the offer of Metheun to repair the pipes at Metzger & Co.’s expense. It was not a tender or promise to furnish a 1-inch pipe or such a promise as would put an end to liability under the contract. As I have already found, Metzger & Co. practically agreed to pay the cost by crediting the sum of $81.75 on the amount of $218 due from the commune. It only remained for the latter to lay the pipes as agreed. On October 10, 1898, Mr. Hay advised the American charge of affairs at Port au Prince that in an interview with the solicitor of the State Department the Haitian minister had said that the commune would furnish the water pipe for Metzger & Co. provided they consent that the cost thereof be credited on the amount of $218 due Metzger & Co. by the commune. The Secretary advised that Metzger & Co. give their consent and offer in writing to pay for the cost in the manner proposed, at the same time not waiving any claim they might have because of the refusal theretofore to furnish them with an adequate supply of water. Mr. Powell, the American minister, took up the matter on that line and reported, on January 17, 1899, that the council of ministers had agreed to adjust the matter, leaving Metzger & Co. in a position to claim damages for any failure of the water supply theretofore. It appears from the diplomatic correspondence that the attention of the Haitian minister at Washington having been called to the claim of Metzger and Co., as to the inadequate water supply for the mill, the minister at once gave assurances that Metzger & Co.’s grievances in that behalf should be adjusted on an equitable basis. On the 3d of June, 1898, Mr. Léger, the minister of Haiti at Washington, in answer to a note from the Secretary of State of the United States advising the minister that the minister of the United States at Port au Prince reported Metzer & Co.’s mill still deprived of water, said, in his note:

In reply, I must not fail to confirm what I had the honor to state to you in an interview of the 2d instant. According to the agreement reached with the solicitor of the Department, I informed my Government of Mr. Metzger’s grievances, and the secretary of state of foreign relations recently wrote to me that the matter had been settled within twenty-four hours.

Afterwards the attention of the minister of Haiti at Washington being called to this agreement, he assured the State Department that it had been attended to for some time. An investigation shows that the honorable minister was laboring under a misapprehension in this regard. A visit was made to the Metzger establishment by the mayor of the commune, who reported that water was furnished to the satisfaction of Mr. Metzger. Doubtless this report misled the minister. An investigation made by Minister Powell shows that there was very little water and the supply at that time was entirely inadequate. Until January, 1899, no successful attempt was made to carry out the contract. I am of opinion that this arrangement agreeing to settle [Page 271]Metzger & Co.’s grievances, promptly accepted by the secretary of state for foreign relations of Haiti, followed by the assurance of the secretary, conveyed by the minister to the State Department at Washington, that the matter had been settled within twenty-four hours, constituted a diplomatic agreement between the two countries which, upon settled principles of international law, should have been carried into effect. It is claimed, on the part of the Government of Haiti, that this correspondence amounted only to an agreement on the part of Haiti to use its good offices with the commune of Port au Prince. I am of opinion that it amounted to much more than that. When the grievance was called to the attention of the minister at Washington, and through him reported to the secretary, no claim was made that the commune alone was responsible, and no attempt was made to limit the authority or responsibility of the Government. On the contrary, the minister and secretary promptly assumed responsibility for the grievance and assured the Government at Washington that it had been rectified. It can not be that good faith is less obligatory upon nations than upon individuals in carrying out agreements. It is now strenuously urged that the Government of Haiti had no authority over the commune of Port au Prince, and must, in its relations with the commune, have limited its interference to friendly advice and suggestions. I do not understand that the limitations upon official authority, undisclosed at the time to the other government, prevent the enforcement of diplomatic agreements. The question came before the Chilian claims commission created by the convention of August 7, 1892, between the United States and Chile, in which a claim was made upon a contract entered into by the United States minister in Chile, in making which the Government of the United States claimed the minister had no authority and denied responsibility, claiming further that the agreement was in violation of the statutes of the United States, and that the plaintiff had a remedy in the United States courts. The commission decided unanimously that it was immaterial whether the minister had exceeded his authority or not, as he had made the promise as the representative of the United States in the name of his Government, which, according to the rules of responsibility of governments for acts performed by their agents in foreign countries, can not be repudiated. In the present case there is no claim that the minister was unauthorized to make the diplomatic representations stated. On the contrary, he was only carrying into effect the instructions of his Government. The learned commission referred, in support of their decision, to Calvo Dictionaire de Droit International, Volume II, page 170, and Calvo Dictionaire International, Volume I, section 417; Moore’s Digest International Arbitration, volume 4, pages 3569–3571. Nor is there any more avail in the argument that the remedy of Metzger & Co. is to be sought in the courts of Haiti against the commune. Even had Metzger & Co. such a right, this would not affect the right to arbitrate the claim as has been done in this case. By the terms of the protocol the arbitrator is competent to take jurisdiction of the claim so far as the liability of the Government of Haiti is concerned (4 Moore International Arbitrations, p. 3571). This view of the case renders it unnecessary to determine whether, as is claimed in argument, the communal authorities are merely the agents of Haiti or whether, as contended by the minister of Haiti, the Government of Haiti had entirely made over the waterworks to Port au [Page 272]Prince, which alone received the revenues and managed its affairs. A diplomatic arrangement fairly and honorably entered into should, in my judgment, be carried into effect. I have already stated what, in my opinion, were the rights of Metzger & Co. under the arrangements made with the commune to supply them with water. This is the arrangement which should have been carried into effect. It should have been carried out by the Government of Haiti upon the responsibility assumed by it. Because of the failure to give them an adequate supply of water Metzger & Co’s, mill was compelled to remain idle, partially for a time and afterwards to entirely suspend operations. Much of the claim for alleged damages on behalf of complainant can not be allowed. The items showing remote and speculative damages do not directly result from the breach of the agreement. The claimants are entitled to compensation for loss of the use of the mill in whole or in part during the time in which they were unable to operate it by reason of the failure to furnish water and its impaired usefulness when an inadequate supply was furnished to them. I am of opinion that damages fairly recoverable in a case of this kind will be compensated by the payment to Metzger & Co. by the Government of Haiti of the sum of $15,000.

the tax seizure.

J. D. Metzger & Co., prior to January 6, 1897, having established a business in the manufacture of doors, sashes, etc., in a planing mill owned by them in Port au Prince, were engaged in carrying on the business, with certain workmen in their employ. On that date several writs were left at the mill for five workmen to appear before a justice of the peace at Port au Prince to pay a year’s license, also certain fines and costs for nonpayment thereof. The amount of the sentences thus imposed vary in amount as to the different workmen, from $86 to $97. These workmen were summoned to appear June 1, 1897. The proceedings against them were on the ground that they were foreigners employed as engineers or clerks. No attention seems to have been paid to these proceedings. On the 16th of June the substitutes of the justice of the peace, a “huissier,” and others appeared upon the premises of Metzger & Co., claiming judgment by default against the workmen. On June 23 the parties again appeared demanding payment of the assessments aforesaid. The same being refused, the goods of Metzger & Co. were seized on the 23d, 24th, and 25th days of June, 1897, and taken from the premises, and, after outcry, an auction being proclaimed and a bell sounded by the crier, goods to the amount and value of $1,200 were sold, although a much less sum was realized therefor, and certain receipts were left at the factory for the license fees, fines, and costs levied upon the workmen, to wit:

Sampson $118
Hubert 108
McCormick 108
Thompson 108
Spain 216
Lee 216

These license taxes were levied under the law of the Republic of Haiti, passed October 24, 1876.

Article 9 provides that “foreigners who shall be permitted to exercise any other industry except commerce, shall pay a tax double of the amount exacted of Haitians exercising the same industry.”

[Page 273]

Article 11 provides that “foreigners employed as clerks or under any other title in the service of merchants, traders, manufacturers, or artisans, either natives or foreigners, shall be subject to the tax specified by tariff.”

“The one who employs them in his service shall be responsible for the payment of the license.”

Article 17 provides that “the dues for licenses shall be collected at the office of the receiver of the commune.”

Article 18 provides that “the license should be taken out each year from the 1st of October to the 15th of November at the latest.”

“All persons subject to a patent, who shall not have taken out within five days after the delay fixed, their licenses shall be, on the denunciation of the communal receiver, condemned by the justice of the peace to a fine of 50 cents for each day’s delay, with 10 per cent of the amount of the license that they should have taken.”

“The fine, as well as the amount of the license and the expenses, shall be, forty-eight hours after the condemnation, if the fine shall not have been paid, seized by office of the justice of the peace on the merchandise, products, furniture, or whatsoever effects belonging to the delinquent.”

“The objects seized shall be under brief delay sold at public auction up to the amount of the sum to be collected, without prejudice to article 36 of the penal code touching arrestation.”

Article 34 provides that “the justice of the peace and the public minister are bound under penalty of removal from office to pursue without delay any infraction of the present law, that they may have discovered or that may have been denounced to them.”

Article 35 provides that “all fines pronounced either by the justices of the peace or the correctional court, for an infraction of the present law, belongs one-half to the one who shall have discovered or denounced the violation and the other half to the communal funds.”

Metzger & Co. strongly protested against this seizure and sale of their property, claiming that the practice had not been to impose fines for nonpayment of licenses; that none of the summonses, writs, or judgments had been recorded, rendering the proceedings null and void; that the seizures are unlawful, being the result of proceedings to which Metzger & Co. were not parties; that articles 11 and 18 of the law of October 24, 1876, have only been applied to foreign clerks. It does not appear that in the early stages of the claim Metzger & Co. predicated a right of recovery upon the ground of infraction of their rights secured to them by the treaty between the Republic of Haiti and the United States. At least as early as August 31, 1897, Mr. Powell, the American minister at Port au Prince, in a communication to the secretary of state of foreign affairs of Haiti, distinctly claimed that the requirements of law were not applicable to all citizens alike as under the treaty between the two countries they should be, and that they could not be enforced. In the diplomatic presentation of the matter, in an interview between the honorable minister of Haiti at Washington and the solicitor of the State Department, the claim was made that the attempt to collect taxes from Metzger & Co.’s workmen was a violation of the treaty rights secured to American citizens under the existing treaty. This position does not seem to have been controverted by the representative of Haiti, but he contended that the redress of Metzger & Co. for their alleged wrongs and grievances could be had in the legal [Page 274]tribunals of Haiti. The American Government, in view of the disposition of the Haitian minister and the pledge on the part of his Government to observe the rights of American citizens under the treaty, on the 9th day of June sent an instruction to its minister at Port au Prince as follows:

The Government agrees no longer to insist upon the settlement of said claims against the Haitian Government (referring to the license taxes) which, on its part, pledges itself to see that the rights which the treaty grants to American citizens in Haiti be strictly observed. This approval is, however, subordinate to Mr. Metzger’s right to demand indemnity for the illegal seizure and sale of his goods, and does not exclude the right of diplomatic intervention in case of a denial of justice.

On October 1, 1898, the Secretary of State of the United States, in an extended note summarizing the position of his Government upon various matters, among other things, said:

If the agreement then made for redress of Mr. Metzger’s grievance over the water supply had been promptly and faithfully performed, the Government might have had no occasion to intervene diplomatically in regard to the indemnity confessedly due Mr. Metzger for the illegal seizure and sale of his goods; for the Haitian Government has admitted the illegality of the license taxes, as being in violation of the treaty, and there can, therefore, be no question of the right of Mr. Metzger to such indemnity.

On October 5 the minister of Haiti at Washington replied to this note, and while he maintained the understanding that the remedy of Metzger & Co. should first be exhausted in the local tribunals of Haiti before diplomatic intervention could be considered, he did not deny nor in anywise controvert the statement above quoted from the note of October 1 of the American Secretary of State. Thus the diplomatic correspondence seems to establish the fact that the claim of Metzger & Co. presented conditions which brought it within the provisions of the treaty in existence between the two nations. The stipulations of this treaty, so far as relevant to the present case, in articles 5 and 6 thereof, provide:

  • Article 5. The citizens of each of the high contracting parties residing or established in the territory of the other shall be exempt from all compulsory military duty by sea or by land, and from all forced loans or military exactions or requisitions; nor shall they be compelled to pay any contributions whatsoever higher or other than those that are or may be paid by native citizens.
  • Article 6. The citizens of each of the contracting parties shall be permitted to enter, sojourn, settle, and reside in all parts of the territories of the other, engage in business, hire and occupy warehouses, provided they submit to the laws, as well general as special, relative to the rights of traveling, residing, or trading.

It will be seen that by article 5 it is expressly provided that the citizens of the high contracting parties residing or established in the other’s territory shall not be compelled to pay any contribution whatever higher or other than those which are or may be paid by native citizens. By the sections of the law passed October 24, 1876, above quoted, it is expressly provided that the license tax imposed upon foreigners shall be double that imposed upon native workmen. This law contains no exception in favor of American citizens residing in Haiti whose rights are thus carefully conserved by the treaty between the two countries. This law, so far as it affects American citizens, is in direct violation of the stipulations of the treaty. In practice it is shown that these license taxes were seldom enforced against workmen in Haiti. By direct enactment of law the solemn obligations of the treaty are ignored and discriminating burdens imposed upon foreigners [Page 275]without exception. When this condition of affairs was diplomatically called to the attention of the authorities of the Republic of Haiti, it is to the credit of that Government that it promptly conceded that American citizens had rights under the treaty which deserve protection and which the Government of Haiti undertook to see were duly guarded, leaving Metzger & Co. to pursue their remedy for the infraction of their rights already sustained. Regarding this state of facts as established by the diplomatic understanding of the two governments, we have a case in which, notwithstanding the provisions of the treaty placing American citizens upon the same plane in this regard as natives, a tax is levied upon them of double the amount of that imposed upon natives, and when not paid the employers of such workmen are subject to a summary seizure and sale of their goods. It is strongly urged in the able argument submitted by the minister of Haiti that the remedy of the claimants should be sought in the local courts of Haiti, and that such remedy is exclusive. Numerous precedents are cited to the proposition that governments will not intervene diplomatically when such remedy is given. As a general proposition, it is settled international law that a government will not intervene in claims against foreign governments when redress may be had in the courts of that country. If there has been a substantial denial of justice, or a gross miscarriage thereof, sanctioned and approved by the opposing government, a nation will then intervene. The arbitrator in this case, however, is given jurisdiction of the differences between the two governments by the terms of the arbitral agreement, giving him jurisdiction and authority to determine certain differences. It is expressly provided in the protocol:

That the question of the liability of the Republic of Haiti to pay an indemnity in each of said cases, and if so found by the arbitrator, the further question of the amount of the said indemnity to be awarded shall be referred to the Hon. William R. Day, sometime Secretary of State of the United States, and now judge of the circuit court thereof, who is hereby appointed to hear said causes and to determine the questions of said liability and the amount of said indemnity, if any is found by said arbitrator to be justly due.

From this agreement the authority of the arbitrator is derived. I can not perceive that the competency of the arbitrator can be limited, because of the fact that Metzger & Co. might have sought judicial remedies in the courts of Haiti. This fact may have weight in the determination of the Government when its attention is called to claims against other governments and may be sufficient reason for declining diplomatic intervention until an attempt has been made to obtain judicial redress in the courts of the country where the claimant is domiciled. The fact that such remedy is afforded may be good ground for withholding consent from an offer to arbitrate differences. I am at a loss to perceive how it can afford a valid objection to the arbitrator exercising powers conferred in the protocol of arbitration. The arbitrator is not called upon to decide the question elaborately argued by the honorable representative of Haiti, that under the constitution and laws of Haiti the commune of Port au Prince is alone responsible for the unlawful collection of the license taxes. The question submitted is, Is the Republic of Haiti liable upon this claim; and if so, to what amount? I do not deem it necessary to inquire as to whether the proceedings of the officials were strictly in accordance with local laws. The law which they were attempting to enforce was a law of the [Page 276]Republic of Haiti in violation of the treaty between the two nations. It need hardly be stated that the obligations of a treaty are as binding upon nations as are private contracts upon individuals. This principle has been too often cited by publicists and enforced by international decisions to need amplification here. I find that the law authorizing double taxation upon foreigners, so far as it relates to American citizens, was in violation of treaty rights, and that the seizure and sale of Metzger & Co.’s goods under the facts established or conceded in this case was under a law sought to be enforced in violation of treaty rights. About $1,200 worth of their goods was seized and sold under the circumstances hereinbefore detailed. I am of opinion that the Republic of Haiti, in compensation for the goods and reparation for their seizure and sale in the manner herein found, should pay to the claimants, John D. Metzger & Co., the sum of $5,000.

award.

In view of the conclusions reached under the several claims submitted to the arbitrator, I do hereby find and award that the Government of Haiti pay to the claimants, John D. Metzger & Co.:

For sale of lumber at Jacmel $3,000
For the failure to furnish water to the mill 15,000
For the illegal seizure and sale of their goods 5,000

In all, $23,000, payable in the gold coin of the United States or its equivalent, within the time provided in the protocol.


William R. Day,
Arbitrator.